Zi Wei Xia v. Certas Home and Auto Insurance Company, 2024 CanLII 126888

Licence Appeal Tribunal File Number: 23-001340/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Zi Wei Xia

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Ashtar Morad, Counsel

HEARD: By way of written submissions

OVERVIEW

1Zi Wei Xia, the applicant, was involved in an automobile accident on October 3, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) dated December 6, 2021, and partially denied December 9, 2021?

iii. Is the applicant entitled to $4,069.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan dated January 27, 2022, and denied February 8, 2022?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated November 19, 2021, and denied November 23, 2021?

v. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find:

i. The applicant’s injuries are predominantly minor and are subject to treatment within the $3,500.00 MIG limit;

ii. If there is funding left in the MIG, the applicant is entitled to treatment up to the MIG limit;

iii. There are no overdue benefits, therefore the applicant is not entitled to interest under s. 51 of the Schedule; and

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

The applicant remains subject to the MIG

4I find that the applicant has not proven on a balance of probabilities that his injuries are not predominantly minor and therefore the applicant remains subject to the $3,500.00 MIG limit.

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

The applicant has not proven that he has chronic pain

7I find that the applicant has not proven on a balance of probabilities that he has chronic pain with functional impairment that would warrant his removal from the MIG.

8The applicant submits that he has continued to experience pain in his back, neck, and head since the accident. In support of his position, the applicant relies on the October 6, 2021, OCF-23 completed by Ahmed Afifi, physiotherapist, the December 6, 2021, treatment plan completed by Dr. Georgia Palantzas, chiropractor, the January 27, 2022, treatment plan completed by Mr. Afifi and the November 29, 2021, treatment plan completed by Dr. Sharleen McDowall, psychologist.

9The respondent submits that the applicant has not demonstrated on a balance of probabilities that he suffers from chronic pain with functional impairment. In support of its position, the respondent relies on the clinical notes and records (CNRs) of Dr. Lawrence Kwan, the applicant’s family doctor, and the applicant’s OHIP summary for the period January 1, 2019, to December 1, 2023.

10The parties agree that applicant received treatment at Total Recovery Rehab Centre in Scarborough after the accident. However, the respondent submits that it never received the CNRs from Total Recovery Rehab Centre, nor were they attached to the applicant’s written submissions. The applicant does mention the CNRs in his submissions. However, the CNRs of Total Recovery Rehab Centre are not part of the evidence submitted to the Tribunal.

11I find that the CNRs of Dr. Kwan combined with the applicant’s OHIP summary for the period of January 1, 2019, to December 1, 2023, do not indicate that the applicant attended at his family doctor or any other clinic or hospital to receive treatment related to the accident. I find that the applicant did not make any reports to his family doctor respecting pain in his neck, back or headaches between the date of the accident and December 1, 2023.

12The applicant relies on an OCF-23 and three treatment plans submitted between four days post-accident and just under four months post-accident. The Tribunal has described chronic pain as a condition that persists for three to six months. I find that the applicant has directed me to only one piece of evidence that he made a report of pain beyond the two-month post-accident period: the January 27, 2022, treatment plan completed by Mr. Afifi.

13I find that Mr. Afifi’s assessment is unclear as to the basis for his assessment. While I understand that the applicant received treatment at Total Recovery Rehab Centre, where Mr. Afifi provides services, the CNRs from the applicant’s treatment are not before the Tribunal. Without such contemporaneous accounts from a doctor or treatment provider to confirm the applicant’s reports of pain, I find that the treatment plan completed by Mr. Afifi is not compelling evidence that the applicant suffers from chronic pain as a result of the accident.

14Further, I place little weight on the reports of functional impairment in Mr. Afifi’s January 27, 2022, treatment plan because I find that it conflicts with the OCF-23 also submitted by Mr. Afifi. The treatment plan indicates that the applicant is still unable to work. This statement conflicts with the October 6, 2021, OCF-23, in which Mr. Afifi reported that the applicant returned to work immediately after the accident. I was not directed to any evidence to explain this discrepancy and the applicant did not reply to the respondent’s submissions that the applicant returned to work after the accident and did not receive any income replacement benefits.

15Therefore, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain with functional impairment that would warrant his removal from the MIG.

16I find that the applicant has not demonstrated on a balance of probabilities that he sustained an accident-related psychological condition.

17The applicant submits that he has been diagnosed by Dr. Sharleen McDowall, psychologist, with a post-accident psychological condition. In support of his position, he relies primarily on the treatment plan of November 19, 2021, completed by Dr. McDowall. He also relies on the October 6, 2021, OCF-23 completed by Mr. Afifi, the December 6, 2021, treatment plan completed by Dr. Palantzas and the January 27, 2022, treatment plan completed by Mr. Afifi.

18The respondent submits that the applicant has not demonstrated on a balance of probabilities that he sustained an accident-related psychological condition. The respondent relies on the CNRs of Dr. Kwan and the applicant’s OHIP summary for the period of January 1, 2019, to December 1, 2023.

19The applicant refers to the “Somatic Assessment records” in his submissions. It is not clear from the evidence in front of me whether the applicant obtained treatment for his psychological symptoms at Somatic Assessments and Treatment Clinic after the accident. Regardless, the CNRs of Somatic Assessments, if they exist, are not in evidence at this hearing.

20I find that the CNRs of Dr. Kwan, along with the applicant’s OHIP summary, do not indicate that the applicant attended at his family doctor, or at any other clinic or hospital in the province, after the accident to seek treatment for or report on his mental health concerns.

21I also find that the pre-screen interview attached to Dr. McDowall’s November 19, 2021, treatment plan makes no reference to any medical or treatment records that confirm Dr. McDowall’s assessment of the applicant or which she reviewed in preparing the treatment plan.

22I find that Dr. McDowall’s opinion, based solely on the pre-screen interview, was that the applicant presented as having symptoms commonly found in individuals suffering from post-accident psychological impairment. I find that Dr. McDowall recommended that psychometric testing and a thorough, in-depth clinical interview were necessary to determine a clinical diagnosis and psychological treatment needs. Therefore, without contemporaneous accounts from a doctor or mental health treatment provider confirming the timing, severity, and consistency of the applicant’s psychological symptoms, I find that the treatment plan completed by Dr. McDowall is not sufficient to establish the applicant suffers from an accident-related psychological condition.

23The applicant also relies on the OCF-23 and treatment plan completed by Mr. Afifi and the treatment plan completed by Dr. Palantzas. These documents describe a variety of psychological symptoms reported by the applicant including anxiety, sleep disorder, attention deficit, nervousness, anxious (avoidant) personality disorder, and other stress. I find that neither Mr. Afifi nor Dr. Palantzas is qualified to assess the applicant’s psychological symptoms. I therefore give these documents little weight as support for Dr. McDowall’s opinion.

24Therefore, I find that the applicant has not proven, on a balance of probabilities, that he suffers from an accident-related psychological condition that warrants his removal from the MIG.

25I find that the applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG limit.

26I have found that the applicant remains subject to the MIG, therefore it is not necessary to determine whether the disputed treatment plans are reasonable and necessary.

27The October 4, 2023, Case Conference Report and Order indicates that the MIG limit has been exhausted. However, the applicant submits that this is not the case. If there is funding left in the MIG, the applicant is entitled to treatment up to the MIG limit.

Interest

28As I have found that the applicant remains within the MIG, there are no overdue payments. Therefore, there is no interest payable in accordance with s. 51 of the Schedule.

Award

29The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

30The applicant submits that the respondent has behaved unreasonably by ignoring the medical records of all of the applicant’s treating practitioners and assessors.

31As set out above, the respondent submits that it never received the CNRs of Total Recovery Rehab Centre, where the applicant obtained treatment after the accident. The CNRs of Total Recovery Rehab Centre were not part of the evidence submitted to the Tribunal.

32I find that an award is not appropriate. The applicant has not demonstrated that his removal from the MIG is warranted, therefore I find that the respondent did not act unreasonably in denying the benefits in dispute. As I have been directed to no evidence that the applicant provided the respondent with a copy of the CNRs of his treatment providers, I find that the applicant has not demonstrated on a balance of probabilities that the respondent behaved unreasonably by ignoring those documents. I find that the respondent is not liable to pay an award pursuant to s. 10 of Reg. 664.

ORDER

33I find: